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Baroness Ramsay of Cartvale: My Lords, I rise to say that not for the first time in this House I find myself provoked in a gentle way by the noble Lord, Lord Tebbit. I rise to speak for myself, but I believe that it is also the case with other colleagues on these Back Benches. If we disagreed with the Government, we
would speak. As we do not disagree with the Government, we see no point in wasting the time of the House.
Lord Ackner: My Lords, I did not attend the Grand Committee. I have an excuse for that, but I shall not weary your Lordships with it. However, I have carefully read Hansard and I have seen the arguments portrayed. In my efforts to be a realist, I do not resist the existence of laymen on the commission—that is the flavour of the year in which we live and it would be foolish to try to put things back where they were—but I just do not understand why there is a majority of lay people.
I can well understand that there are one or two lay people in order to make what occurs transparent to those who are not members of the judiciary—and that serves a most useful purpose—but why the majority? The search is for the greatest merits in the candidate. I do not suppose that the lay people will have any chance of seeing the QC, who is likely to be one of the proposals, in action in court if he be a Recorder or some other temporary judicial person. They will have no specific experience of him. In the small profession in Ireland, it is easy to lose a good reputation and what is a person's reputation is his stock in trade. That will be known to other members of the profession, but the lay person will not know. Certainly not all five will know—it may be only one or two.
I do not understand what is the function of the majority. Obviously something underlies it, but it is a little like—
Baroness Scotland of Asthal: My Lords, I am grateful to the noble and learned Lord for giving way because I believe that he is labouring under a misapprehension. There are six judicial members and we include among them the one lay magistrate. Of course he will sit in a judicial capacity as a lay magistrate. We then have a solicitor and a barrister, both of whom noble Lords will know are conversant with the law. There are then five lay members. So in fact, one could say in terms of lawyers versus non-lawyers, using the football analogy, that we have them eight:five.
Lord Ackner: My Lords, I am not quite sure of the purpose of the interruption, particularly as the Opposition were called to recognise the limitations in the second stage of the Bill. A number of questions were preceded by the phrase, "Before the noble Baroness sits down", a formula which I thought was frequently used but which is not apparently available on Report. That is news to me.
In any event, the intervention by the noble Baroness does not bear upon the amendment. The reason for the amendment is to translate a majority on the judicial side. They are now a minority of one; the lay people succeed by an extra one. It is a little like saying to the passengers on a liner, "You know nothing about the
technical side of this ship, but you take over the engine room. Those who do know about it will go up to the cabins which you occupied".I should like the noble Baroness to explain to the House exactly what is the function of the lay people, except to see that the system is fair; that the decision appears on the face of it to be sound and reasonable; and to ask any questions which they may believe have not been asked by the lawyers who have expressed their views. I hope that we will be told why the particular numbers were hit upon. There must be some explanation, but, as has been pointed out already, to say, "I think we have just got the balance right", is a conclusion and not an argument.
Baroness Park of Monmouth: My Lords, in supporting the amendment I shall quote from the views of the SDLP and Sinn Fein when they were discussing this very issue:
- "The SDLP would prefer to see more lay members than judicial members because the danger in the system that we are reconstructing is that the judiciary will have too much influence, power and control in the appointment of judges. As politicians, we in the SDLP believe that that is too much power to give to that body".
- "One can reasonably anticipate a corporate approach to the appointments process. There is a very real possibility of little or no change and another lost opportunity".
Baroness Scotland of Asthal: My Lords, I hope that I will be able better to satisfy noble Lords in relation to this issue. As I said in Grand Committee, the review struck a careful balance in its recommendations. During the consultation exercise, some argued that the lay involvement went too far—as some noble Lords have argued today—while others argued that the involvement did not go far enough. I do not hesitate to repeat what I said on the previous occasion: I believe that the provisions set out in the Bill have the balance about right.
On a number of occasions I have been asked to explain the purpose of the lay members and what they add to the process. Not least I have been asked that by the noble Lord, Lord Brooke, who, with his customary charm, complimented me on my charm. Perhaps we should have a mutual admiration society in that regard.
I could not put it better than to echo the words of the noble and learned Lord, Lord Ackner, a few moments ago. He set out the basis on which the lay members add something. However, I should say—in particular to the noble and learned Lord, Lord Mayhew—that, unlike surgeons, judges operate in the court to which lay people become subject. Judges are to be seen, to be commented on and they have imposed on them a charge to communicate with the public the rightness of their judicial office.
Noble Lords know that, over a period of years, concerns have been expressed that, although many judges are sufficiently erudite in considering
judgments, they do not always communicate their thinking to the public at large in the way that perhaps one would best like to see such statements delivered. So, when choosing between two excellent candidates, both of whom may have the advantage of a first class brain, an ability to define the law and to express themselves with precision in judicial terms, sometimes it is helpful to choose the candidate with the greater humanity. That can be judged as easily by a lay member as by a judicial member.One must look at the question of confidence, not only in relation to Northern Ireland but more widely. Our judges must win the confidence of the public. People must be confident that judges are not too remote, that they understand the ordinary cares of the everyday man. The public must be confident that judges will speak simply and in a straightforward manner, using the plain language that is necessary. Noble Lords will know already that the greatest lawyers do use plain rather than convoluted language. All those factors can be judged with precision by a lay member. Courtesy can be so judged, as can integrity.
Lord Ackner: My Lords, I thank the Minister for giving way. It sounds as though the function of the commission is to promote the High Court judge to the Court of Appeal. Therefore, people come to watch him and find that he may not enunciate what he wishes to do with a characteristic clarity or has some other error. But we are not promoting judges up the judicial ladder; we are dealing with the appointment of someone who is not a judge to the position of a High Court judge.
5.45 p.m.
Baroness Scotland of Asthal: My Lords, the noble and learned Lord has it exactly right, but he or she has to demonstrate that they are able to communicate in a plain and easily understandable way. The noble and learned Lord has acknowledged the fact that it is now very much accepted that lay people will form part of the assessment process for many different bodies in many different areas of appointment. Indeed, when we consider disciplinary matters, lay members also participate in those. The reason why the "fashion"—as the noble and learned Lord put it—has changed is because it has been demonstrated that there is merit in including those who do not share the specialisation of a particular area. It is important to include that input in a determination.
Perhaps I may return to the numbers. The numbers are fairly balanced. As I remarked earlier, one will have six judicial members, in which I include the lay magistrate. That is because the lay magistrate performs a judicial role. When a lay magistrate serves on the Judicial Appointments Commission, he or she sits in a judicial capacity as a judicial officer and cannot be viewed as a "lay" person, in terms of being outwith the judicial process.
One has two members of the profession, both of whom will be legally trained. One can suppose that, in the ordinary way, they would be excellent representatives of the two sides of the profession. Lastly, there are five members who could properly be
described as "lay", having no legal or other appropriate training. The number of five lay members was chosen rather than four better to provide the reflectiveness required. Such reflection of the community at large is easier to achieve with the larger number. As I have pointed out already, we believe that the balance is eight to five and not, as has been suggested, either equal or including a smaller number of lawyers.We believe that the lay members will bring a valuable perspective and alternative skills to this difficult process, in particular in the situation of Northern Ireland. It is important that the public is confident about what is transpiring, as well as being confident that the balance it wishes to see struck is being maintained.
I turn now to Amendment No. 7. Noble Lords seek here to stipulate that a deputy county court judge shall be one of the judicial members of the commission. Again, as I pointed out in Committee, this would go against the review, which recommended one judicial member from each tier of the judiciary, carefully balancing the number of legal representatives against the number of lay representatives. Noble Lords will know that a deputy county court judge does not form a separate tier of the judiciary. For that reason, I ask for the amendment to be withdrawn.
I should tell noble Lords that the people currently making up the "lay persons" sitting on judicial interviews are departmental officials or retired officials. That participation of a lay element in the judicial process, in the choosing of our judiciary, is already in place in our system. We are not seeking to put in place anything terribly new here. However, we are seeking to comply with what is now taken as good practice and to follow as closely as we can the recommendations of the review.
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